172 
THE NATIONAL NURSERYMAN. 
STOCK IIS TRAISSIT, 
Important Supreme Court Decision Regarding Common Carrier’s 
Liability—Case of Frozen Stock Results In Damages for 
the Plaintiff—Full Text of the Decision. 
Henry A. Siebrecht recently obtained judgment in the 
New York City court against the Pennsylvania Railroad Co., 
for damages resulting from the freezing of plants during ship¬ 
ment. The case was appealed to the general term and there 
the judgment was affirmed. An appeal was taken to the 
appellate term of the Supreme court with the same result. 
In his opinion Judge McAdams of the Appellate division 
says : 
The action is to recover for damages done to certain plants of the 
plaintiffs while in defendant’s care, caused by alleged unreasonable 
delay in transportation, during which they were frozen. 
It appears that on Friday, February 22, 1895, at 2 p. m. , one Burton, 
a florist and greenhouse keeper at Chestnut Hill, Pennsylvania, shipped 
by the defendant’s road a lot of palms consigned to the plaintiffs at 
Jersey City, which the defendant agreed to transport with due dispatch. 
By the bill of lading the defendant was exempted from damage done 
by freezing while in transit. 
In order to recover, therefore, it became necessary for the plaintiffs 
to establish negligence or breach of duty on the part of the defendant, 
so that they were bound to prove that the defendant not only unreason¬ 
ably delayed transportation, but that the plants were frozen during the 
time of delay and because of it. 
The plaintiffs assumed this burden, and proved that the average 
time of a freight train between the place of departure and the terminus 
at Jersey City was from eight to twelve hours. This would fix about 
2 A. M., on Saturday as the proper time for the arrival of the train at its 
place of destination, but the plants could not be delivered in any event 
according to the usual course until the business hours of that day. 
According to the defendant’s evidence they arrived at Jersey City on 
Saturday at 5 p. m. The plaintiffs had no one at the train at that time 
to receive the goods. Their employe, Smyth, testified that he tele¬ 
phoned on Saturday about 5 p. m., to the freight yard of the defend¬ 
ant, and received a reply that it would be impossible for the plants to 
get in until 5 o’clock on Sunday morning ; that he drove over on Sun¬ 
day morning about eight o’clock, and received the plants in a frozen 
condition. 
Of course the defendant, if free from neglect, was not responsible for 
the weather. It agreed simply to transport the plants with due care 
and despatch, and if within the reasonable time allowed for transpor¬ 
tation the weather became so cold that the plants were not able to 
withstand it, the loss under the bill of lading would have to be that of 
the shipper or consignees. 
The defendant produced the United States weather report, which is 
a contemporaneous record kept by trained public servants, upon whose 
returns the government weather bureau founds all its forecasts, and 
proved by this record that from February 22, at 2 p. m., to February 
24, at 8 p. M., the weather was coldest between midnight of the 22d 
and 8 a. m., of the 23d, the thermometer having fallen to a minimum 
of 16 degrees at New York and 20 degrees at Philadelphia; and that 
from the night of the 23d (Saturday) until the morning of the 24th 
(Sunday) the thermometer highered, registering, however, some degrees 
below freezing. 
The defendant claimed that this established that the freezing of the 
plants occurred between Friday at 2 p. m., and Saturday morning, 
when they ought to have arrived in Jersey City, and upon this theory 
requested the court to charge that “if the jury believe that by usual 
dispatch the plants would have reached Jersey City on the morning of 
February 23d, and that the coldest weather after the shipment occurred 
in the twelve hours preceding the morning of the 23d, then therff is no 
evidence that the plants were injured because of the longer time occu¬ 
pied in transportation to which the trial judge replied : “ I refuse to 
charge as requested, but will leave the fact to the jury to say upon all 
the evidence when the freezing of the plants took place.” 
Of course it was for the jury to say when the freezing took place, 
and if the request had been that if they found that the freezing 
occurred during the usual period of transportation the defendant 
would not be liable, it would no doubt have been charged. But the 
defendant went further and asked for a binding instruction that if the 
coldest weather after the shipment occurred in the twelve hours pre¬ 
ceding the morning of Saturday the 23d, then there was no evidence 
that the plants were injured because of the longer time occupied in 
transportation. This result did not necessarily follow, for according to 
the record offered in evidence by the defendant the mercury stayed be¬ 
low the freezing point on Saturday and during that night and Sunday 
morning. This was of itself some evidence bearing on the question 
and material to its determination in view of the expert evidence 
introduced. 
Experts testified that plants are safely shipped during all seasons of 
the year, and that those in question were properly packed to resist 
freezing for twenty-four hours. It was for the j ury to say whether 
they might not have successfully defied freezing if they had not been 
longer exposed to the elements. It is common knowledge that with 
the natural heat in live plants, like that in human bodies, they may 
resist low temperature for a given time before freezing, and that the 
hardiest plant or body, however well protected, may finally perish if 
exposed long enough to a rigorous winter temperature. This feature 
had to be considered by the jury in reaching a result. 
The risk of freezing after the usual time for transportation expired 
was on the defendant, and the evidence was sufficient to require the 
submission to the jury of the question whether the freezing occurred 
while the defendant was in default, and they found that it did occur 
during that period from causes for which by reason of its neglect the 
defendant became liable. 
Negligence is in general a conclusion from the facts in evidence, to 
be drawn by the jury under instructions from the court, and is always 
so when the facts and conclusions rest in doubt. When the inferences 
to be drawn from the testimony are not clear and incontrovertible, and 
men of ordinary judgment and discretion might differ as to its signifi¬ 
cance, it is the exclusive province of the jury to pass upon the ques¬ 
tions involved. 
Where the injury may have resulted from one of two causes, one of 
which would establish liability, and the other excuse the defendant, 
and absolute certainty as to which did cause it is unattainable, the 
verdict of a jury is conclusive. 
We have not referred to the plaintiff’s proofs as to temperature, 
because the exception presented for review is to the refusal to charge, 
which was founded exclusively on the defendant’s evidence as to 
temperature, conditioned upon the finding that it was true. 
In view of the facts established and the inferences to be drawn from 
them, with the inherent probabilities—all of which were to be con¬ 
sidered by the jury—the trial judge properly disposed of the request 
to charge, and as his refusal to make it is the only ground upon which 
the exception urged was taken, the judgment miist be affirmed, with 
costs. All concur. 
HOOVER & GAINES CO. 
The Hoover & Gaines Co., Dayton, O., went into the hands 
of a receiver on November 17th. Claims held by the Dayton 
national banks aggregating ^12,500 were presented. J. W. 
McNary was appointed receiver. ' 
The appraisement of the property and assets of the company 
considerably exceed the liabilities. There are no preferences 
or liens of any kind on the property of the company, all the 
creditors standing on an equal footing. It is furthermore a 
double liability company, so that there is no question that all 
claims will be paid in full within a reasonable time. 
GETS A GOOD DEAL OUT OF IT. 
J. O. Barksdale, Red Hill, Va.—“I enclose $l for a year’s sub¬ 
scription to your journal. I get a good deal of valuable information 
from it.” 
